I won’t be back… can an employee refuse to return to work after lockdown?

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Steve Conlay, Associate in BPE’s Employment team discusses the first UK Employment Tribunal case based on an employee refusing to attend work on health and safety grounds due to COVID-19 and the implications for businesses.

With more workplaces reopening as the easing of lockdown restrictions continues, businesses are considering how best to action the return to the workplace.  Whilst many people and businesses are considering a flexible, hybrid pattern of both home and office based working, for some a physical presence in the workplace will again become the norm.

Amongst the prime concerns for HR teams and management are the health and safety of employees upon return to the workplace. Whilst guidance from the Health and Safety Executive is readily available, some employees, particularly those who have been shielding or are more vulnerable, may understandably have concerns about returning to a workplace environment. So what should employers do when an employee refuses to return? A recent employment tribunal judgment, the first of its kind in the UK in relation to COVID19, has provided employers with guidance on the same.

In the case of Rodgers v Leeds Laser Cutting Ltd, Mr Rodgers had been employed by the business for approximately 9 months as a laser operator.  The workspace was large (described as half the size of a football field) with typically 5 people working on the floor at any given time. When the first national lockdown was announced in March 2020, Leeds Laser Cutting Ltd (the Respondent) produced a communication stating that they would be staying open and carrying out a risk assessment with measures implemented to allow the business to operate as normal.

After coming down with a cough shortly after the lockdown announcement, Mr Rodgers sent a text to his manager stating that he had no option but to stay off “until the lockdown has eased”. He was also required to self-isolate during this period, however, did break this to drive a friend to hospital and had later worked in a pub.

Mr Rodgers was dismissed the following month (for reasons undisclosed in the tribunal) and a text message quoted in the judgment, which was sent from Mr Rodgers to his manager, stated “I have been told iv (sic) been sacked for self-isolating”.

Mr Rodgers brought a claim against the Respondent in relation to his dismissal. The tribunal acknowledged that Mr Rodgers was unable to claim the usual unfair dismissal owing to him lacking two years’ service, however he was able to bring a claim for “automatic unfair dismissal” on health and safety grounds.

Mr Rodgers highlighted S100(1)(d)&(e) Employment Rights Act 1996 which states that an individual is unfairly dismissed if the reason (or, if more than one, the principal reason) for his dismissal was:

(d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger.

The tribunal went through the above test and found that Mr Rodgers’ belief “of serious and imminent danger” was unreasonable due to the measures the Respondent had put in place. It also found that Mr Rodgers “could reasonably have been expected to avert any dangers, by abiding by the guidance at that time, namely by socially distancing within the large, open workspace, by using additional personal protective equipment if he wished to do so, and by regularly washing/sanitising his hands”.  As a result of these findings, Mr Rodgers’ claims failed.

In a key part of the tribunal’s judgment, Employment Judge Anderson considered Mr Rodger’s argument that… “…. even if there had there been measures in place at the time, there was still a reasonable belief held by the Claimant of a serious and imminent danger, which he could not avert”. Employment Judge Anderson commented that “I am not persuaded that this is a correct interpretation of the provisions. To accept this submission would essentially be to accept that even with safety precautions in place, the very existence of the virus creates circumstances of serious and imminent danger, which cannot be averted. This could lead to any employee relying on s100(d) or (e) to refuse to work in any circumstances simply by virtue of the pandemic.”

This case demonstrates the importance of carrying risk assessments and implementing health and safety measures which could be the difference between successfully defending a claim and facing a large pay out in tribunal. It is also a warning to employers that what may at first appear to be a minor issue, can quickly evolve into a litigious matter leading to potential adverse publicity depending on the outcome.

What should you do now?

Revisit your risk assessments and policies

  • You will almost certainly have already carried out a risk assessment over the course of the last year, however this should now be revisited with a particular focus on the numbers of individuals who are due to return. A good risk assessment, made available upon request to employees, will reassure employees that the workplace is safe to return to and should avoid any allegations of a breach of obligation in relation to health and safety. If you have not yet undertaken a risk assessment, the HSE has produced a template which is available here.

For advice on measures to put in place to protect, support and reassure employees as they return to the workplace, please get in contact with Steve Conlay at  steve.conlay@bpe.co.uk or call 01242 248444 or another member of the BPE Employment team

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